This article argues that suburban municipalities obtained a privileged status vis-à-vis cities in American law – a reversal of the historical pattern – because the suburbs, as conceived by legislators and the judiciary, were more readily integrated as organs of the modern administrative state. In particular, where the city represented a mode of organization that emphasized autonomy from the sovereign and the rights of the collectivity as against those of the individual, the suburb was constructed as a conduit for the State to exert authority on and distribute goods to isolated single-family homeowners. This article traces the evolution of the legal concept of the municipality by situating it within the context of parallel transformations in two similar corporate organizations: the business corporation and the labor union. Beginning in the Progressive Era of the late nineteenth century, rapid industrialization caused the city, the business corporation, and the labor union to swell in size and influence. Threatened by the challenge these organizations posed to State authority and individual freedom, political elites and the courts responded by stripping them of their corporate legal powers. A more sophisticated approach appeared after the First World War, as the elites opted to reconstruct and reinvigorate organizations in a manner that served their own goals. The organizations were endowed with a collective legal status that superficially recalled the grand stature of their past while codifying their subordinate roles within the bureaucratic state. Thus, the suburb assumed the trappings of corporate personality once reserved for the city even as it proclaimed the emergence of a new legal concept of municipal organization.

Daniel Hamilton, Chicago-Kent College of Law, has posted the abstract to an article, The Confederate Sequestration Act, which appeared recently in Civil War History (v. 52, p. 373, 2006). For the article itself, see the journal, or contact Hamilton through his SSRN page. Here's the abstract:

In the South there was near ideological consensus on the legal basis for seizing Union property during the Civil War. The United States was an enemy belligerent whose property was, at international law, subject to permanent confiscation during war. Through the resort to international law, the Confederacy was able not only to assert its sovereignty, but also to craft a far more rigorous and effective confiscation regime much quicker than their Northern counterparts. U.S. citizens were, at Confederate law, foreigners, and were not due the protections of domestic Confederate constitutional law. U.S. citizens were not traitors or rebels, and in fact owed no legal allegiance to the Confederate States of America. As a result, all of the agonizing self-scrutiny over the constitutional rights of the enemy that so dominated the Northern confiscation debates was mostly absent in the South. The classification of the Union as a foreign country had important institutional consequences. Property was confiscated by Confederate courts simply if it could be shown such property belonged to an alien enemy. By 1865 the Confederate judiciary had seized and sold millions of dollars worth of Northern property located all over the South.

Yet the very independence of the Confederacy also limited the reach of Southern property seizure. Northern confiscation was designed to seize disloyal property and took place as the Union acquired more and more Confederate territory. Sequestration, on the other hand, could be enforced only within the boundaries of the new Confederate nation. The Confederacy made no claim to dominion over the Union, but was instead fighting to secede. By the laws of war, the Confederate army operating in the U.S. could impress property for its own use. But the Confederate Congress could not, in contrast, make any general claim to property located inside the boundaries of the United States. Belligerent property belonging to U.S. citizens could be confiscated by the legislature only if it was located inside the boundaries of the Confederacy.

The fact that Union property was subject to legislative confiscation only inside the Confederacy put remarkable demands upon Southerners, and became, in some cases, oppressive. All citizens were required to inform the government of any enemy property of which they were aware, whether in their possession or anyone else's, imposing a clear legal instruction to inform on one's neighbors. In this way, the Sequestration Act reflected a broad assertion of extraordinary constitutional powers on the part of the Confederate government, and, in particular, its courts. Families were required to offer up to court officers property belonging to children and siblings living in the North. Lawyers, bankers, brokers, and businesses were made to open their books to reveal any property located in the South belonging to Northern clients or partners. The contents of wills were scrutinized by court officers who duly seized property that would have passed to Northern heirs. Most importantly, in terms of the sheer amount of money involved, the Sequestration Act made the Confederate government the new creditor for any debt owed by a Confederate citizen to an alien enemy. Those in debt to any U.S. citizen now owed money to the Confederacy instead.

Wednesday, May 30, 2007

Philip Zelikow, the executive director of the 9/11 Commission and former aide to Condoleezza Rice, argues in an important article just posted on the History News Network that enhanced interrogation methods are immoral. He contends that the Bush administration took a legalistic approach to the war on terrorism that led policy makers to ask the wrong question: "In other words, instead of asking: What can we do?, [policy makers should have started] by asking: What should we do? Just this difference, changing "can or cannot" to "should or should not" changes the framework of debate, changes the evidence and reasoning you use, and changes the role that lawyers should play in the policy process."

Mr. Zelikow, White Burkett Miller Professor of History, University of Virginia, served as executive director of the 9/11 Commission and later as a counselor to Secretary of State Condoleezza Rice. The article was delivered as the Annual Lecture, Houston Journal of International Law, on April 26, 2007.

He argues, in part, that after initial decisions were made about how to react to the 9/11 attacks,

Operating under broad legal parameters set shortly after the 9/11 attacks, a series of policy choices were made, especially in 2002 and 2003, about how to conduct the armed conflict. Especially in the case of CIA, it appears from publicly available sources that, responding to some informal guidance from the White House, the Agency designed, developed, and implemented various techniques and capabilities with little substantive policy analysis or interagenency consideration.

Lawyers from other agencies and departments, as well as the White House, were apparently assembled to consider and approve the legality of the proposed methods as, or after, the critical policy choices were being or had already been made. The legal defense then became the public face of the policies. The debate became framed as a legal debate. Legal opinions became policy guides. Opinions to sustain the CIA program had an indirect effect on the guidelines developed for DOD activities as well, since DOD did not wish to develop positions inconsistent with those already in place.

Able bureaucratic players in the Bush administration were able to use legal opinions to provide formal policy cover for Agency operations and deal with internal dissent and unease (‘the Attorney General has said it is legal’). Above all, using the legal defenses as the public face of the issue moved the terrain of debate to the President’s legal powers in wartime – strong ground indeed. Also interesting is that opponents of the policies found this battleground congenial too. Habits of thinking in legal terms were reinforced. Constitutional and civil liberties lawyers eagerly stepped forward, and they could do so without having to soil their hands by confronting the concrete policy necessities at hand. Thus the public debate was decisively framed – and deformed.

This essay, based on my lecture at the American Society of International Law's annual meeting, is an attempt to unravel the political, ideological and social character of the complex interactions between international law and development, understood as two discourses that came together at the end of World War II, and the particular ways in which that interaction was received by First and Third World international lawyers. In the following, I make two inter-related claims. First, I claim that international law has played a crucial, perhaps even a central part, in the evolution of the ideology and practice of development in the post World War II period. This fact, I claim, has been overlooked by development writers, as well as international lawyers in general. My second claim consists of two parts: in the first part, I assert that contrary to the received ways in which mainstream international lawyers have generally treated development and human rights - as antithetical to each other -, they should be seen as deeply implicated in each other and functioning within common parameters. In particular, I claim that the mainstream human rights discourse remains too deeply mired within the progressivist and teleological imperatives set by the development discourse, and therefore can not be counted upon in an unproblematic way, as an emancipatory narrative of resistance to violence and oppression unleashed by the development encounter. The second part of my second claim is that - paradoxically and contrariwise - international law has had a central role in the resistance to the same ideology and practice of development.

In the following I examine these themes through a discussion of two questions: first, how did international lawyers receive development in the post-World War II period and what were the implications of that in terms of constraining the violence of development? Second, why was/is international law oblivious to the violence of development and what does it tell us about the relationship between law and violence in international life as well as between law and resistance?

Ali Khan, Washburn, has just posted on SSRN a paper that is nearly 20 years old. The article on, the relationship between Islamic constitutionalism and socialism in Iran, will remain of interest to scholars doing historical work on on comparative constitutionalism. Constitutional Kinship between Iran and the Soviet Union was published in the New York Law School Journal of International and Comparative Law. Here's the abstract:

Islamic egalitarianism embodied in the Iranian Constitution presents an alternative to both capitalism and secular socialism and redefines the obligations of an Islamic state. If Iran succeeds in establishing a stable and workable constitutional system, it may give a revitalized respectability to the idea of joining Islam with modern egalitarian principles.

This book by anthropologist Tobias Kelly analyzes how law works in the West Bank of the Jordan River, with a focus on law as it relates to West Bank Palestinians as workers. The context is the complex post-Oslo bifurcation of authority, stemming from agreements between the Palestine Liberation Organization and Israel negotiated in Oslo in 1993, according to which Israel ceded some of its authority as belligerent occupant in the West Bank. Israel had been in control since the June 1967 war, during which it occupied the eastern sector of what had been known as Palestine while under British control between the world wars.

Under the agreements that followed the 1993 Oslo agreement, the PLO would administer some areas of the West Bank, principally the population centers, while Israel would remain in overall control. The PLO under the agreements set up a Palestinian National Authority as an administrative structure. This bifurcation of administration between Israel and the PLO was designed to last only a few short years, as Israeli withdrawal from the West Bank was expected to be negotiated soon.

The negotiation process lagged, however, and bifurcated government continued. The PNA regulated certain aspects of life, while Israel, through an administration set up at the start of its occupation, regulated others. To make the situation more complex still, many Palestinians performed day labor inside Israel, subjecting them to yet another jurisdiction, namely, Israeli law, and to the institutions of the Israeli government.

Kelly addresses the labor relations of Palestinians and how Palestinians as workers deal with conflicts and disputes that arise in relation to their employment. As the situation admits of little collective labor action, the focus is on individual employment relations with employers. The lack of trade union protection leaves only individual remedies to a Palestinian worker with a grievance against an employer....Each circumstance involves a Palestinian worker in a different set of legal relationships. And in none of them is there a single set of legal norms or a single legal structure.

The political backdrop is never far below the surface in any of these relationships. An issue that arose for Palestinians working in Israeli settlements was whether the law applicable to this labor relationship was Israeli law on the one hand, or on the other, the Jordanian law that is generally applicable in the West Bank. As the law in force when Israel’s occupation began, Jordanian law has continued to be applied as the law of the territory. For a Palestinian working in an Israeli settlement, however, Israeli law is preferable in certain respects. In particular, it is more generous as to severance pay upon termination. If Israeli law applies, then Palestinians and Israelis are treated the same, since Israel applies its own law to its citizens, even when they are in the West Bank. If Jordanian law applies, then a Palestinian worker has fewer rights than an Israeli fulfilling the same work in the same settlement. To make the matter more confusing, Israel’s application of its own law was, at the international level, unlawful, since an occupant is to apply the law in force.

The position that makes sense for the Palestinians at the ‘macro’ level – that their own law should apply in the West Bank to the exclusion of Israeli law – works against their interests on certain issues, like severance pay. Thus, Israeli lawyers representing Palestinians seek application of Israeli law....

Most who think about the legal, or political, situation in the West Bank operate in global terms: denial of self-determination, or Israel’s security concerns. Kelly’s book focuses on interaction at the economic and personal level, thus rendering these broader issues more concrete. His elucidation of these relationships may be helpful to potential mediators. Israelis and Palestinians will likely interact for a long time to come, and a sound legal basis for that interaction would make life more bearable for all concerned.

At a more general level, Kelly’s book invites thought about how disputes are handled in other societies.

Alexandra Kemmerer, University of Wuerzburg, has posted a new essay, The Turning Aside: On International Law and Its History. It is forthcoming in PROGRESS IN INTERNATIONAL ORGANIZATION, Rebecca Bratspies and Russell A. Miller, eds., (Martinus Nijhoff Publishers, 2007). Here's the abstract:

The purpose of this paper is to take a closer look on the current phenomenon of a growing and still expanding interest in the history of international law. International lawyers, but also historians, turn to the history of the discipline, to the past itself as well as to its study and knowledge. Throughout the new and renewed discourse, history is closely intertwined with theory, and even with political theology. Often, it seems, the past is understood as providing traces of a path (or at least a pathfinder) into the complex future of a fragmented and differentiated international community.

The paper will argue that the study of international law's history requires not only careful contextualizations of law and history, but also thoughtful distinctions. If history is to sharpen and enlighten our understanding of the present, intradisciplinary boundaries are to be respected. History is not theory is not political theology. Each discipline is, respectively, in need to reflect upon its potentials, risks and limits.

The paper will proceed in three steps: Following a short, yet festive praeludium (II.), it will start by sketching the current debate about the history of international law (III.). Needless to say, it would be impossible a task to provide here a comprehensive survey. The observations described will merely be an extended promenade, introducing the reader to a variety of voices and tunes along the way. The text will then turn to the interrelatedness of history and theory, stressing the need to make the study of history a synchronic movement of distance and immersion, thereby recognizing our complex relationship to history and time (IV.). By finding their way between past and future, international lawyers can draw from experiences from other times and disciplines (V.). After all, "Uses and Disadvantages of History for Life" have been discussed before.

In conclusion, there will be a return to the library shelves which had been visited in the opening part (VI.). There will be another bibliophile impression, alluding to an indeterminacy which is common to both history and theory of international law. And to the choices which are ours to make.

Monday, May 28, 2007

There is some good advice on other blogs about book publishing, a topic I will return to later.

For now, very helpful tips can be found at Tenured Radical. The advice is directed especially toward those with a dissertation being revised into a first book, but much of it applies to, e.g., law professors writing a first book after years of article writing. Be sure to read through the comments for more.

Al Brophy had a post on PropertyProf a while ago with thoughts about selecting a press.

Many editors and agents recommend Susan Rabiner and Alfred Fortunato, Thinking Like Your Editor: How to Write Great Serious Nonfiction--and Get It Published. It is directed especially toward academics who hope to write for a trade audience, but much information is relevant for those writing with an academic press in mind as well. E.g., what goes in a book proposal? How do you think about the "audience" question? The book is especially good at helping you to see the way marketing concerns (which every press will have) affect the way an editor will view your proposal. The sample proposal in the book is a trade proposal. Academic press proposals would spend more time stressing the book's contribution to the existing literature, the importance of the arguments, innovation in the research, etc.

Whether you are a law professor moving from articles to books, or a recent Ph.D., if seeking a first book contract, you are an unknown in the book world. In your first contacts with an editor and in your proposal, pitch yourself as well as your project.

This will sound hokey, but you only have one chance to make a first impression. Don't hold your work back too long, but also don't approach an editor before you're ready. Once when it took me a paragraph to describe an article I was writing, a colleague said, "You've got to sound bite it, Mary." The same goes for your book. If you can't say what the major point of the book is in a sentence or two, you're not ready. If you can't provide a concise summary of the book and its importance in a paragraph, you're not ready. How do you go from writing the project to pitching it? A good exercise is to take friends to lunch, perhaps friends who know nothing about your project, and explain your project to them, until you can explain it to a new person in a concise, interesting and powerful way. Then you're ready to approach editors at conferences, and to write follow-up e-mails.

I try to begin a book proposal with one paragraph (or two) that will hopefully cause the reader to want to read the rest. I do the same thing in an initial e-mail or letter to an editor (or an agent, if that's what you're looking for). These folks are very busy, and many projects cross their desks. Let them know that they can't put yours aside in the first page of anything you send. Don't hide the crucial findings or dramatic nuggets on page five. By then, your carefully written proposal may have been set aside. In case it's helpful, here's how I began the proposal for the book I'm working on now:

In 1960, a year of tumult and change in both Africa and America, America’s leading civil rights lawyer, Thurgood Marshall, was caught up in race politics on another continent. Invited by African nationalist leaders to help write Kenya’s independence constitution, he would find himself protecting the rights of a new kind of minority: white landholders soon to lose political power. Meanwhile, the fight for civil rights at home would change, as student activists began a sit-in movement and hoped to push the older generation of lawyers aside. Before long, Marshall would become the Supreme Court Justice we remember him for. The life lessons he would take to his work on the Court included his African journey, which reinforced his faith in law and minority rights as a way to perfect democracy. Marshall would tell everyone about Kenya. But the story of his work in Kenya has never been told.

There was, of course, much more to this proposal, but this is how it started out.

Finally, most of the time, it's best not to send a completed book manuscript, unless an editor has requested it. Most editors want to see a proposal and a sample chapter. If you send the full manuscript, it will probably take the editor longer to read it, and outside reviewers longer to review it.

Later in the summer I'll post about how to write a chapter outline for your proposal, and other topics.

FDR by Jean Edward Smith (Random House) was reviewed on Sunday in the Washington Postby Jonathan Yardley. Yardley begins with a story about Winston Churchill dropping Franklin Roosevelt off at the Casablanca airport in 1943.

'Let's go,' he told an aide. 'I don't like to see them take off. It makes me far too nervous. If anything happened to that man, I couldn't stand it. He is the truest friend; he has the farthest vision; he is the greatest man I have ever known.' "

Hyperbole? Perhaps. There are many who will argue that the greatest man Churchill had ever known was Churchill himself. Yet of Roosevelt's greatness there can be no question....He led the nation out of the Depression that could well have destroyed it, and then he led it to total victory in the most terrible war the world has known. He gave hope to millions who had lost it, and he changed forever the relationship between the citizens of the United States and their government.

For a quarter-century or more, that new relationship has come under challenge, primarily because of the conservative revolution engendered by Barry Goldwater and Ronald Reagan, and in the process Roosevelt has retreated somewhat into the shadows. Though the fruits of his legacy certainly warrant reconsideration, the relative neglect into which he has fallen is an injustice. So it is good indeed to have Smith's new biography of him. That he has managed to compress the whole sweep of Roosevelt's life into a bit more than 600 pages may seem in and of itself miraculous, but his achievement is far larger than that. His FDR is at once a careful, intelligent synopsis of the existing Roosevelt scholarship (the sheer bulk of which is huge) and a meticulous re-interpretation of the man and his record. Smith pays more attention to Roosevelt's personal life than have most previous biographers. He is openly sympathetic yet ready to criticize when that is warranted, and to do so in sharp terms; he conveys the full flavor and import of Roosevelt's career without ever bogging down in detail.

Sunday, May 27, 2007

The rise of the railroads and the U.S. Supreme Court play important roles in a story of the betrayal of a more democratic vision of America in Jack Beatty, Age of Betrayal: The Triumph of Money in America, 1865-1900 (Knopf), reviewed today in the Boston Globeby Steven Hahn, University of Pennsylvania."Does American capitalism have a history?" Hahn writes. "Ever since the end of the Cold War, capitalism has appeared both omnipotent and omnipresent....Many scholars believe that America effectively began as a capitalist society, and these days few of them even bother to study capitalism's development."

Jack Beatty's interesting and pointed new book offers a different assessment. Yes, he proclaims, American capitalism does have a history, and it is a history that has compromised, if not undermined, our democracy and set us on a course of social and political crisis. In "Age of Betrayal," he takes us to the decades when the course was set, when "our" nation was born, and tells what he describes as "the saddest story."

What makes his " the saddest story" is a great moment of promise betrayed. In the bloodbath of the Civil War, two measures -- the Emancipation Proclamation and the Homestead Act, which took effect on Jan. 1, 1863 -- offered a radical vision of freedom, citizenship, and economic independence by ending slavery and providing cheap land for settlers in the trans-Mississippi West. It was a vision that would give national footing to Lincoln's America and enable the United States to stand apart in the 19th-century Atlantic world. Unfortunately, the promise steadily gave way before the twin engines of racism and industrial capitalism, leaving a very different society by century's end....

The central relationship of America's betrayal, in Beatty's view, was the alliance between government and business: an alliance that makes a mockery of the notion that the 19th century was an age of laissez-faire, and one that established the foundation of an emerging state capitalism. The central institutions were the courts, and especially the Supreme Court, which whittled away the promises of freedom, citizenship, and independence for ordinary Americans and instead handed them over to the corporations. And the central vehicle of this truly revolutionary transformation was the great engine itself, the railroad.

Legal historians will be familiar with a version of this story, but in Beatty's telling, it becomes a battle not among legal titans, but places Supreme Court Justice Stephen J. Field alongside Andrew Carnegie, and plays out in bloody battles in the streets. Ultimately, "the betrayal was the work not of technologies or abstract forces but of members of a new elite who inverted the Constitution, corrupted the political process, and launched a 'revolution from above.'"

Hahn finds in the book "a narrative that is absorbing in its detail and refreshingly uncompromising in its perspective." He notes that "although Beatty is a writer, editor, and news analyst rather than a professional historian, he is remarkably well versed in the scholarly literature on the period, and he frequently (perhaps a bit too frequently) invokes its leading authorities to support his arguments."

Saturday, May 26, 2007

"Military records featuring 90 million Americans who have fought in wars from the 1600s through the American Civil War to Korea and Vietnam have been brought together online," BBC reported recently. Hat tip to HNN.

The huge collection of documents, which includes draft registration cards, photographs, prisoner of war records and news reels, is the work of family history website Ancestry.com.

It hopes to help millions of Americans uncover their ancestors' pasts through their military records, and to shed a little light on the nation's history as it marks Memorial Day on 28 May.

About a third of the records - some 30 million names - are now visible for the first time on the internet following the collection's launch on 24 May. Others were already searchable online.

And, I might add, Ancestry.comit hopes to make a bundle along the way. Ultimately you will have to pay to access these records. But searches of the military records datebase are free through D-Day(June 6).

How useful is this? Supreme Court Justice Frank Murphy signed up for the Reserves during World War II, even though on the Court. I found no World War II records for him, but I did find his World War I Draft Registrationrecord. Earl Warren was California Attorney General and then Governor during World War II, but even he had a Draft Card. Warning: specific Ancestry.com links in this post will expire soon.

To get a sense of how easy it is to find ordinary people, I looked up my dad. He served in World War II. I can find no draft card or enlistment records for him, only a record of where he is buried. But he was a brilliant young science student, and was taken out of basic training and sent to Oakridge, Tennessee. His records may have been classified. So then I looked for the records of a friend's father and grandfather. No luck there either.

Baseball legend Babe Ruth registered for the draft in both World War I and World War II, by which time he was 47, giving "baseball player" as his occupation.

One of America's most famous magicians also registered for the draft in 1918, filling out his full name on the card as Harry Handcuff Houdini.

There are other interesting resources, particularly newsreels, including this onewith seeming upbeat images of Japanese Americans being interned to camps, "not as prisoners, but free to work and paid by the United States Government." (Film footage doesn't show the guard towers, barbed wire, and armed patrols, and government sponsored professional photographers were barred from taking pictures of them.)

Overall, the search function for this site is valuable, even if the records are spotty. Use it while it's free.

For writers of narrative history, one challenge is the way to build an argument into the story. An analytical framework is always part of narrative history -- a theory of history (explicit or implicit), and an analysis of the components of the particular historical episode inform the way the research is conducted and the narrative constructed. What seems to the reader to be a seamlessly well-told tale is the product, not only of painstaking research, but of puzzling over questions of causality and the nature of historical method. While every historiographical turn may not be parsed for the reader, the challenge is how to adequately highlight and develop the most central arguments while also maintaining the power of the narrative form.

All writers should struggle with this balance, and many have trouble getting it right, so it is not an unexpected criticism for Martin J. Hardeman to find fault with David E. Stannard's book, Honor Killing: Race, Rape, and Clarence Darrow's Spectacular Last Case(Penguin, 2005) for an apparent misfit between a narrative that he finds well written, and an analysis that he calls "truly fascinating." By pointing to this as his disappointment with the book, Hardemen helps readers reflect on the craft of narrative history.

David E. Stannard's Honor Killing: Race, Rape, and Clarence Darrow's Spectacular Last Case is about a place, a time, and two criminal cases. The place was the Territory of Hawaii. The time was 1931 to 1932. And, the two criminal cases consisted of a very messy allegation of gang rape, made even messier by the different races of the alleged rapists and their victim, and the later revenge kidnapping and murder of one of the accused.

What became known as the "Massie Case" began on September 13, 1931, when Thalia Massie, the twenty-year old wife of a naval officer reported her sexual assault by five native Hawaiian men to the Honolulu police department. Over time and with the assistance of the chief of detectives, Mrs. Massie's description of her assault, the assailants, and the license plate of their car would become more detailed. Ultimately, it would lead to the arrest, indictment, and trial of Horace Ida, David Takai, Henry Chang, Ben Ahakuelo, and Joseph Kahahawai,two of whom were Japanese, one Hawaiian-Chinese, and only two native Hawaiians....[The jury failed to reach a verdict, and a retrial was ordered.]

The next act began on January 8, 1932, when Tommie Massie, his wife's mother (Grace Fortescue), and two Navy enlisted men kidnapped and murdered Joseph Kahahawai in a bungled attempt to extort a confession. Arrested the same day, the four were eventually indicted for murder in the second degree.

The new trial attracted world-wide attention and, for an almost unheard of fee of $40,000, Clarence Darrow as lead attorney for the defense. Confessing that he had fired the fatal shot, Tommie Massie pled temporary insanity. However, Darrow's actual defense was built on the right of a husband to avenge the sullied honor of his wife. To the general surprise of the public, Darrow's eloquence failed. The jury found all four guilty. But, the story was not quite over. Under pressure from the local white elite as well as from the Hoover administration in Washington, the Territory's governor, Lawrence M. Judd, commuted the ten-year sentences of the four to sixty minutes each.

Honor Killing is both enlightening and entertaining. Even though detailed descriptions of the trials and the bizarre people that surrounded them take up more than three-fourths of the text, they are not David Stannard's primary concern. He sees the Massie case as a catalyst. It provided a reason and a platform for Hawaii's non-whites to unite despite ethnic and racial differences. It was a spark that ignited a democratic revolution. It began with columns in the Hawaii Hochi, a Japanese-language newspaper, questioning Thalia Massie's rape allegation as well as the impartiality of the investigation by the police and the public prosecutor's office. Doubt infected Princess Abigail Kawananakoa who provided funds for the accused men's lawyer. Doubt affected other members of the native Hawaiian upper-class as well as ordinary members of the non-white majority, doubt that turned into conviction for the thousands of mourners that attended the ceremonies surrounding Joseph Kahahawai's funeral. Conviction and solidarity steadily led to the political overthrow of the white oligarchy that had ruled since annexation.

Honor Killing is a worthwhile read. But, Stannard's lively narrative and truly fascinating analysis are not a seamless fit. Somehow, the cruel frivolity of the Massie affair (with its echoes of the Scottsboro case) so dominate the text that analysis seems like an afterthought. Because of this, his book is a little less than it could have been.

What do lawyers and Blue State voters have in common? They subscribe to the view that values do not belong in public discourse and that, as Ronald Dworkin put it, “no person or group has the right deliberately to impose personal ethical values on anyone else.” This view animates both the legal profession's prevailing “hired gun” perspective and the principal political approach of voters who supported the Democratic presidential candidate in the 2000 and 2004 elections. This Essay suggests that this confluence is no accident, for both are grounded in the same public philosophy.

The Essay traces the history of how dominant public philosophies have shaped both jurisprudence and legal ethics. Prior to the Civil War, the republican combination of natural law and empiricism prescribed a distrust of majority rule. Within this framework, a governing class of virtuous lawyers devoted to the public good would protect rule of law and individual rights. Following the Civil War, elite public philosophy began a shift that enthroned empiricism and discarded natural law. From this period through the 1960s, commentators progressively narrowed conceptions of both the capability of lawyers and their governing class role. Eventually, the lawyer's role diminished to that of an “amoral technician."

In spite of this historical trend, lawyers continue to serve as a de facto governing class both through their disproportionate role in formal governance and their day-to-day work as intermediaries between the law and the people. The Essay concludes with a call for lawyers to “revive their capacity as a political leadership class,” even in a public sphere “inevitably full of value conflict and debate.” This would require lawyers both to accept responsibility for their own values and to “develop the ability to promote dialogue among and between people of different values.”

Thursday, May 24, 2007

The Legal History Blog should be up and running to keep you company during the summer. But with a book deadline coming up...as with other sorts of summer construction projects, delays may sometimes be expected. Blog-related e-mail, updates and corrections may especially take longer than I would like. Apologies. I hope you like the book!

I will continue to focus on working papers as they come in. If there are few SSRN papers, I'll pick up some older pre-blog papers you may have missed.

I have been getting e-mail queries about JD/Ph.D. programs and careers in legal history, so I will address these sorts of issues when I can in future posts.

This is an essay on the past practice and future possibilities of Mormon legal history. For most legal scholars, the fact that there even is such a thing as “Mormon legal history” comes as a surprise, and the idea that it “should be proved . . . to be worthy of the interest of an intelligent man” may sound dubious at best. In part, such a reaction stems from the marginal status of Mormons. At a broader level, however, the invisibility of Mormon legal history is simply part of the broader problem of the discussion of religion within the legal academy. The thesis of this essay, however, is that the relative invisibility of Mormon legal history lies mainly in the idiosyncratic intellectual development of Mormon legal historiography itself. By explaining that development and introducing the work that has already been done on Mormon legal history, I hope to assist future scholars to better integrate Mormon legal experience into the mainstream discussions of the legal academy.

My aim in this article is to illuminate the common law of torts and its relation to and with ideas about gender difference, by focusing on three sets of cases involving injured women, spanning the time between approximately 1860 and 1930.

My conclusions run counter to two approaches scholars have frequently taken in analyzing gender and the common law of torts. Some tort scholars neglect gender completely, omitting it as an important axis of analysis. Other scholars, though not themselves erasing women or omitting gender, find that historical tort law itself committed a similar act of exclusion or subordination in the development of an objective standard of care. But notwithstanding the recent explosion in feminist torts scholarship, little scholarship actually examines and discusses old accident cases to test a hypothesis of exclusion and consistent oppression against their particular language and holdings. This Article essays such a test, using as the field of study three categories of cases, involving injuries to women who were passengers in cars and wagons, injuries to female drivers of wagons, and injuries to women boarding and disembarking from trains. Reported decisions in these categories evince common understandings of gender differences courts considered relevant: that wives had less authority than husbands, that women were less competent in the public sphere of transportation than men, and that women were less physically agile than men. This Article presents the interplay of those understandings and tort doctrine.

The results of this interplay were as complex as gender difference and tort law themselves, and my project is one of thick description - to complicate rather than to present a unified field theory of gender and tort. Nonetheless, one solid conclusion to be drawn from all three categories is that, as might be expected given the existence of female accident victims and the importance of the ideology of gender to social ordering, the accusation of erasure of gender difference is incorrect. Far from naively erasing gender by subsuming women into the male category of "reasonable men" or a purportedly neutral, but no less male category of "reasonable persons," courts actually treated gender as an important factor in assessing appropriate standards of care. Neither do the cases support a charge of invariable refusal to take account of women's experience, or of consistent deprecation of women's capabilities. Each of the three categories of opinions serves as a case study of tort law's intricate interaction with gender difference, illuminating the diversity of possible and actual legal approaches to thinking about women's agency, authority, and capabilities. Together, in rhetoric, analysis, and result, they present a world frequently, though not uniformly, friendly to women and their needs.

In the first set of cases, discussed in Part I, women were injured as passengers in cars and wagons, usually when their husbands were driving. During the entire period surveyed, the cases establish courts' views of the gendered relationship of wife to husband were of central analytic importance to their legal assessments of a woman's right to recover against a third party who caused an accident. Part I-A explains that although the cases display a relatively unchanging construction and presentation of the marital relationship B assigning the wife, at least in the public space of the roads, to a subordinate role to her husband B doctrinal changes from 1860 to 1930 precisely inverted the legal result of this assignment. In the early part of the period, courts concluded from women's subordinate position in marriage that a female passenger could not recover against a third party if her husband's driving had negligently contributed to the accident. But in 1890 or 1900, the results shifted, and courts concluded from the same subordination that a female passenger could recover in the same circumstances. Part I-B demonstrates additionally that courts deciding whether a female passenger had herself been contributorially negligent also considered gender norms relevant to the inquiry; the idea that female authority and competence was lessened in public spaces contributed to some courts' decisions that the injured women passengers before them had not been contributorially negligent.

Part II discusses a second set of cases, in which women drivers of wagons were injured. Some nineteenth-century court decisions in this category acknowledged and treated a perceived gender difference - that women were inferior drivers to men. These opinions examined numerous doctrinal possibilities for the role gender should play, but settled on none of them, showing that a particular shared understanding about gender does not answer the question of how gender should bear on the injured female tort plaintiff's right to recover. Later opinions dealing with female drivers, by contrast, generally did not discuss gender at all.

Part III presents a third and final set of cases, in which women were injured boarding and disembarking from trains. Underlying these decisions was yet another, and related, shared understanding of a gender difference B that women had more difficulty than men negotiating the world of train and streetcar travel. Here, the defendant railroads' legal status as common carriers framed how judges incorporated perceived gender difference into their analysis. As in the first set of cases, though not the second, as courts in this third category repeatedly confronted the perceived difference of women from men, and decided whether and how to accommodate that difference, some particularized rules and a fairly consistent caselaw developed. In a contextual analysis that was not quite feminist, but not anti-feminist either, courts were more likely to invite women into public spaces and to enforce access rules for them than to exclude them, and were more likely to treat women as adults with adult capabilities and responsibilities of self-care, than as children unable to take care of their own safety.

Although their facts otherwise vary, the three sets of cases do share one obvious factual feature B all involve transportation-related injuries. This focus on transportation reflects early tort law's similar focus rather than any claim that gender was at issue only in this subset of personal injury cases. And of course, courts also discussed gender in cases that did not involve accidents at all. Divorce cases, rape cases, cases about such gendered torts as seduction or alienation of affections C all were among the arenas in which lawyers and courts discussed women and the law's relationship to and expectations for them. This Article presents just one piece of the puzzle.

Named after the late Kathryn T. Preyer, a distinguished historian of the law of early America known for her generosity to young legal historians, the program of Kathryn T. Preyer Scholars is designed to help legal historians at the beginning of their careers. At the annual meeting of the Society two younger legal historians designated Kathryn T. Preyer Scholars will present what would normally be their first papers to the Society. The generosity of Professor Preyer's friends and family has enabled the Society to offer a small honorarium to the Preyer Scholars and to reimburse, in some measure or entirely, their costs of attending the meeting.

The two winners of the competition will be named Kathryn T. Preyer Scholars. Each will present the paper that he or she submitted to the competition at the Society's annual meeting in Tempe on October 25-28, 2007. Kathryn T. Preyer Scholars will receive a $250 cash award and reimbursement of expenses up to $750 for travel, hotels, and meals.

Since readers have been so helpful in the past, I have a request for some advice.

I need to upgrade equipment and service so that I can both blog and have better e-mail access while on the road. This will be especially true during the next academic year, when I will regularly spend a few hours on Amtrak to Princeton.

Yes, I know that there is information on Mobile Blogging in the Blogger help menu. What I could use is advice from bloggers, and even from mobile e-mail users, of the best equipment and service. When I look at coverage areas for mobile broadband, for example, the coverage appears to be very poor in the smaller cities I often find myself in. Right now, not being a fan of 24/7 e-mail access, I don't even have a Blackberry. But I am planning to move out of the Stone Age.

With the new technology out there, if you needed a smart phone, and ideally laptop internet access, for blogging and other things for work while traveling through large & small cities, what equipment and which service would you pick? Posting comments would be ideal, since others will be interested (you can create a pseudonym, you simply have to register). Or you can e-mail me.

Researching Legal History in the Digital Age, by Morris L. Cohen, Yale Law School, has just appeared in the Law Library Journal. Thanks to Paul Moorman, USC Law Library, for the tip. This article, which includes links in the notes and an appendix to resources for on-line research, is invaluable. Here's the abstract:

The renaissance of interest in American legal history has been greatly aided by a variety of developments in the materials and methods of legal research. Legal history has become a new center of attention in American legal education and scholarship and has attracted similarly enhanced interest in university historydepartments. Fortunately, this comes at a time when increasingly sophisticated research techniques and sources are gaining wide acceptance in both the academic and legal communities. Professor Cohen surveys the effects of these advances on research in American legal history.

Cohen noted in the piece, written before the Legal History Blog was launched, that he knew of no blogs in legal history, but that there is "an ever-expanding universe of new forms of communication to explore." And here we are.

It would be a great service if someone (the Yale Law Library?) were to create a webpage with descriptions and links to Cohen's sources.

The conventional explanation for the inclusion the grant of diversity jurisdiction (i.e., federal court jurisdiction in cases between citizens of different states) in the Constitution and the first Judiciary Act is that it was necessary to prevent state-court discrimination against out-of-staters. However, the weight of the historical evidence supports the conclusion that diversity jurisdiction was also aimed at the application of parochial state laws, particularly state debtor protection enactments. This second purpose of diversity jurisdiction cuts against the Supreme Court's 1938 decision in Erie Railroad v. Tompkins which held that federal courts exercising diversity jurisdiction must apply the same substantive law as their state court counterparts. This article proposes a partially implementing diversity jurisdiction by over-ruling the Supreme Court's 1941 decision in Klaxon v. Stentor Electric which held that the Erie principle also requires federal courts to adhere to state choice-of-law rules. If diversity courts were to apply an independent choice-of-law approach they could avoid the forum-law bias that pervades most of state choice-of-law doctrine.

In 1990, in Burnham v. Superior Court, the U.S. Supreme Court upheld the traditional rule that a civil defendant could be subjected to personal jurisdiction in a state simply by being physically served with the summons while in the state, no matter how brief or casual the defendant's presence. The validity of this tag rule of jurisdiction had been assumed to be in jeopardy as a result of the Supreme Court's 1977 decision in Shaffer v. Heitner which stated in dictum that it was unconstitutional for a state to exercise jurisdiction over any defendant lacking minimum contacts with the state. The Burnham Court, however, could not agree on a rationale. Four justices essentially rejected Shaffer and concluded that the historical pedigree of the tag rule immunized it from constitutional scrutiny. Four others accepted the Shaffer rationale but applied a watered-down version of the minimum contacts test. Justice Stevens in his lone opinion apparently agreed with both rationales. Burnham lays bare the confused origins of the notion that issues of state-court jurisdiction are a matter of constitutional significance. This article argues that this confusion stems from the highly ambiguous 1877 opinion in Pennoyer v. Neff. While Pennoyer seemingly introduced the notion that the Due Process Clause limited state court jurisdiction, plausibly the opinion meant only that due process principles guarantee a defendant an opportunity to challenge jurisdiction. This shaky foundation has led to a confused Supreme Court jurisprudence in this area. The article argues that the Supreme Court should dramatically limit the doctrine and invalidate only those attempted exercises of jurisdiction that put the defendant at a practical disadvantage.

In the Archives of New York Universityis a collection of special value: The Derrick Bell Papers. Derrick Bellis well known to many Legal History Blog readers. The first tenured African American member of the Harvard Law School faculty, he has long been a Visiting Professor at NYU, a position he took up in protest of Harvard’s hiring practices. He is an icon of the Critical Race Theorymovement in legal scholarship. His life story captures the history of race in American law and legal education since the middle of the 20th century, and he has documented it all.

Last week I spent two days using these records. My research was focused on records related to the NAACP Legal Defense Fund in the early 1960s, and the role of civil rights lawyers through that decade. The files of the Legal Defense Fund itself, most unfortunately, remain closed, but civil rights historians can find part of the LDF story in the papers and memoirs of individual lawyers. Bell’s papers include material from his work on James Meredith’s ultimately successful effort to integrate the University of Mississippi. They include notes used for speeches Bell gave at NAACP local chapters in the South. Used in one speech was a letter from another African American student at Ole Miss, detailing the way he was treated by whites on campus. Voluminous correspondence during these years includes letters from his proud mother, who affectionately tells her son in 1960 to "behave yourself."

Of particular significance is the papers’ extensive documentation of the history of race in American legal education, from Bell’s forthright letter to Harvard Law School Dean Derek Bok in 1969, laying out the terms that would make a Harvard position attractive to him, and why it was that the law school needed him, through his mentoring of students during the era of Black Power on campus, to the struggles that would engulf both Bell and the legal academy.

Bell’s own ideas about race and the law can be traced, of course, through his extensive published works. But in these records, researchers can see the arguments a young lawyer would make about law and social change from the late 1950s through the height of the civil rights movement, and through the difficult later years during which he would produce his most searing works. These papers are the source for a great biography, if they find the right author.

Researchers interested in the Derrick Bell Papers should contact the Archivesbefore arriving for research. Information about access to the archives is here. Here are some tips not on the website:

To enter Bobst Library, you must first visit the Permissions window to the left as you enter the lobby. The rules for library access for non-NYU students and faculty are here. To avoid delays, be ready to tell them exactly where you are going (University Archives, rather than Derrick Bell Papers). Bring ID showing your affiliation with a college or university. If you are an independent scholar or writer, ask the archivist what to bring, and keep with you a print-out of e-mail correspondence with the Archive regarding your visit. You will need to visit the Permissions window and repeat this process every day. (I encountered no difficulties and it was quick, however a student in line in front of me had trouble getting through, so it's good to be prepared to ensure that you don't waste time.) The Permissions window opens when Bobst opens (earlier than the Archives), so you can take care of this without cutting into research time.

The Archive reading room is small, and access to electrical outlets is awkward. If you can, bring a back-up laptop battery. As is the usual practice, you may use pencils but not pens for note taking. Paper and pencils are not provided – bring your own. You are not barred from bringing books or other reference sources into the reading room.

The boxes listed on the finding aid are not the conventional 4 or 5 inch wide document boxes, but instead are much larger boxes, perhaps 12 to 15 inches wide. This means that the contents of each box may be more voluminous than you would otherwise anticipate.

The staff is very professional and helpful. Boxes were provided promptly, copies quickly made and problems resolved efficiently. The staff is small, so you may need to be patient if several researchers are present at one time.

Recommended reading before you go: The Derrick Bell Reader, Richard Delgado and Jean Stefancic, eds., and Bell's books. A selected list is here.

I just happened to see this devastating film about surveillance in communist East Germany last night. Some will be attracted to it out of an interest in a narrative of the impact of a surveillance state on the lives of its citizens. It is also simply a superbly crafted film.

Warning: Ash's review discloses the way the film turns out, down to its very last line. This blog excerpt includes only a partial plot description, and does not give away the ending. I recommend both the film and the review most highly. Readers might prefer to see the film first, and then read Ash's full essay.

Ash writes:

One of Germany's most singular achievements is to have associated itself so intimately in the world's imagination with the darkest evils of the two worst political systems of the most murderous century in human history. The words "Nazi," "SS," and "Auschwitz" are already global synonyms for the deepest inhumanity of fascism. Now the word "Stasi" is becoming a default global synonym for the secret police terrors of communism. The worldwide success of Florian Henckel von Donnersmarck's deservedly Oscar- winning film The Lives of Others will strengthen that second link, building as it does on the preprogramming of our imaginations by the first. Nazi, Stasi: Germany's festering half-rhyme.

Ash, it turns out, has a Stasi file himself, having lived in East Berlin in the 1970s. He tells the story of his Stasi surveillance in his book The File. Because of this experience, he writes,

It was therefore with particular interest that I recently sat down to watch The Lives of Others, this already celebrated film about the Stasi, made by a West German director who was just sixteen when the Berlin Wall came down. Set in the Orwellian year of 1984, it shows a dedicated Stasi captain, Gerd Wiesler, conducting a full-scale surveillance operation on a playwright in good standing with the regime, Georg Dreyman, and his beautiful, highly strung actress girlfriend, Christa-Maria Sieland. As the case progresses, we see the Stasi captain becoming disillusioned with his task. He realizes that the whole operation has been set up simply to allow the culture minister, who is exploiting his position to extract sexual favors from the lovely Christa, to get his playwright rival out of his way. "Was it for this we joined up?" Wiesler asks his cynical superior, Colonel Anton Grubitz.

At the same time, he becomes curiously enchanted with what he hears through his headphones, connected to the bugs concealed behind the wallpaper of the playwright's apartment: that rich world of literature, music, friendship, and tender sex, so different from his own desiccated, solitary life in a dreary tower-block, punctuated only by brief, mechanical relief between the outsize mutton thighs of a Stasi-commissioned prostitute. In his snooper's hideaway in the attic of the apartment building, Wiesler sits transfixed by Dreyman's rendition of a piano piece called "The Sonata of the Good Man"—a birthday present to the playwright from a dissident theater director who, banned by the culture minister from pursuing his vocation, subsequently commits suicide. Violating all the rules that he himself teaches at the Stasi's own university, the secret watcher slips into the apartment and steals a volume of poems by Bertolt Brecht. Then we see him lying on a sofa, entranced by one of Brecht's more elegiac verses.

While Ash finds some inaccuracies in the film's portrayal of East Germany, he emphasizes, "the point is that this is a movie. It uses the syntax and conventions of Hollywood to convey to the widest possible audience some part of the truth about life under the Stasi, and the larger truths that experience revealed about human nature. It mixes historical fact...with the ingredients of a fast-paced thriller and love story."

American viewers might come away from the film reflecting on the nature of a surveillance state, and the way its corrupting influences can seep into even the private corners of individual lives. Ash turns instead to a reflection on Germany, and on the relationship between a history of evil and a contemporary embrace of liberty. It is reminiscent, perhaps, of Kim Scheppele's idea that countries have sometimes constituted themselves through constitutional reforms to depart from a "regime of horror." Here is Ash:

The Germany in which this film was produced, in the early years of the twenty-first century, is one of the most free and civilized countries on earth. In this Germany, human rights and civil liberties are today more jealously and effectively protected than (it pains me to say) in traditional homelands of liberty such as Britain and the United States. In this good land, the professionalism of its historians, the investigative skills of its journalists, the seriousness of its parliamentarians, the generosity of its funders, the idealism of its priests and moralists, the creative genius of its writers, and, yes, the brilliance of its filmmakers have all combined to cement in the world's imagination the most indelible association of Germany with evil. Yet without these efforts, Germany would never have become such a good land. In all the annals of human culture, has there ever been a more paradoxical achievement?

For the full essay (recommended -- especially after seeing the film), click here.

James Coolidge Carter (1828-1905) was perhaps the most respected appellate advocate in the country at the end of the nineteenth century. He argued approximately three dozen matters before the Supreme Court, including some of the most significant cases of the Gilded Age. This essay, prepared for a forthcoming festschrift in honor of Morton Horwitz to be published by Harvard University Press, focuses on Carter's advocacy in three Supreme Court cases: U.S. v. Trans-Missouri Freight Association (1897) and U.S. v. Joint Traffic Association (1898), a pair of important early interpretations of the Sherman Antitrust Act, and Smyth v. Ames (1898), the decision that established substantive due process limits on legislative rate-setting. As a lawyer for the railroads in these matters, Carter voiced seemingly inconsistent views regarding the beneficence of the free market. One the one hand, his arguments in the antitrust cases were premised on the assertion that rate wars destructive to railroads inevitably arose in the absence of regulation. On the other hand, in Smyth, he maintained that a freely competitive system invariably resulted in railroad rates that were fair to shippers. While Carter obviously shaped his arguments to serve the particular needs of his clients, this tension also reflected an authentic ambivalence about the benefits of competition shared by many elite Gilded Age thinkers. Carter's briefs were representative of a political economy that emphasized both classical free market principles and the limits on those principles necessitated by late-nineteenth-century developments.

Description: Historian Jill Norgren chronicles the life of Belva Lockwood, the first woman to run a full presidential campaign in 1884. She would run again in 1888 to demonstrate that women could compete with men in the political arena. Belva Lockwood was also the first woman to practice at the bar of the Supreme Court in 1879. The author will be introduced by Supreme Court Justice Ruth Bader Ginsburg and her talk will be followed with comments by John Ferren, Senior Judge, DC Court of Appeals; Wendy Williams, Law Professor at Georgetown University and Justice Ginsburg.

Author Bio: Jill Norgren is Professor Emerita of Government and Legal studies at John Jay College and Graduate Center, The City University of New York. She is also the author of "The Cherokee Cases: Two Landmark General Decisions in the Fight for Sovereignty" and co-author of "Partial Justice: Federal Indian Law in a Liberal-Constitutional System."

Description: Jack Rakove won the Pulitzer Prize in 1997 for his book "Original Meanings: Politics and Ideas in the Making of the Constitution." He tells his story of the beginnings of the document as well as its relevance today. Mr. Rakove was interviewed for Booknotes in May of 1997

Author Bio: Jack Rakove has been a professor of history at Stanford since 1980. He won the pulitzer prize in 1997 for his book "Original Meanings." His first book was "The Beginnings of National Politics.' He is originally from Chicago.

There is no end of interest in the work of Franz Kafka, surely one of the great modernists of our time. Stories such as The Trial and In the Penal Colony live in popular culture. Images like the hapless Gregor Samsa, the man who became a giant insect, have iconic status. But while critical interpretations of Kafka still proliferate, there is precious little commentary on Kafka's work as a lawyer. By looking at this less visible side of Kafka's life and work—a side that Kafka himself tried to keep well hidden—we can gain a new understanding of Kafka's literary oeuvre. Kafka's fascination with mechanical detail as well as his penetrating insight into the workings of modern bureaucracy were all influenced by his activity as the principal member of the legal section of a quasi-public, quasi-private accident insurance company. Kafka coupled a concrete prose style to literalness of expression deployed in the service of strange stories and enigmatic tales in unfamiliar settings, but none of this can be separated from a professional position that put him in personal contact with horrific industrial injuries as processed through an uncaring bureaucracy bound to an antiquated justice system—contacts that reinforced an innate identification with the victims of social inequality and indifference.

The revolutionary political, economic, and religious changes in England from the time of Henry VIII through the execution of Charles I accompanied the creation of the modern law of contracts. Most legal historians have ignored the impact of the Protestant Reformation and the rise of Puritanism on the development of the common law. Only a few historians have considered the influence of Puritanism on the law but have come to conflicting conclusions. This paper considers the question of Puritanism's impact on three aspects of the common law of contracts: the rise of the writ of assumpsit, the rationalization of the doctrine of consideration, and the independence of promissory conditions.

The Authors conclude that Puritan theology was irrelevant to assumpsit and consideration but could have influenced the framework of analysis of the application of virtually absolute liability in Paradine v. Jane.

Second, the Puritan emphasis on discipline — personal, social, and ecclesiastical — respresents an independent source of influence on the development of the common law of contracts. The disciplined life grew in cultural significance with the Reformation and the subsequent process of confessionalization. Of the three confessional traditions arising from the Reformation, the Reformed, which included the Puritans, implemented discipline to the greatest extent. The Puritan tools of discipline — self-examination, literacy, catechizing,and local ecclesiastical implementation — proved effective. The emerging modern state valued a disciplined citizenry and eventually co-opted the social gains produced by Puritanism. The particular forms of Puritan theology and discipline were contributing factors to the English Civil War. The Civil War both precipitated the monopolization of judicial power in the common law courts and exacerbated the need for the imposition of social order from above. These factors also underlay the decision in Paradine v. Jane.

Thus, we believe that Puritan social practice - not Puritan theology - influenced the common law of contracts.

Tuesday, May 15, 2007

I don't know the answer to this question, but blog archives of some kind will be historical research sources of the future, so others are working on the issue.

The Library of Congressis already archiving blogs through its "Web Capture" program. The LOC website describes it this way:

The Library of Congress preserves the nation's cultural artifacts and provides enduring access to them. The Library's traditional functions of acquiring, cataloging, preserving and serving collection materials of historical importance to the Congress and the American people to foster education and scholarship extend to digital materials, including Web sites.

In 2000, the Library of Congress established a pilot project to collect and preserve these primary source materials....

In 2004, the Library’s Office of Strategic Initiatives created a Web Capture team to support the goal of managing and sustaining at-risk digital content. The team is charged with building a Library-wide understanding and technical infrastructure for capturing Web content. The team, in collaboration with a variety of Library staff, and national and international partners, is identifying policy issues, establishing best practices and building tools to collect and preserve Web content.

How did I find out about this? The Legal History Blog has been "captured!" It feels pretty much the same as pre-capture. I haven't figured out where I'm captured and who I have been captured along with. But if you leave comments, they will be there for historians of the future.

If you are a blogger, your input on digital preservation is sought in a survey, going on right now. Here's the announcement, via the Law Librarian Blog (hat tip):

Do you blog? If yes, then please consider participating in an online survey from the University of North Carolina at Chapel Hill's School of Information and Library Science. The study, Blogger Perceptions on Digital Preservation, is being conducted under the guidance of Paul Jones. Members of this research team are Carolyn Hank (Principle Investigator), Songphan Choemprayong and Laura Sheble, PhD students at the School of Information and Library Science at UNC-CH.

The researchers are interested in hearing from all bloggers on their perceptions on digital preservation in relation to their own blogging activities, as well as the blogosphere in general. To hear more about this survey, please visit the study's fact sheet at The Project Site. From there, you can link out to the web-based survey. The survey will be available through May 23, 2007.

The official history of the Judge Advocate General’s Corp (JAG Corp) says “the primary mission of the Corps is to support the warfighter . . . Most importantly (the JAG Corps) provides the structure and support for maintaining discipline, the foundation of an effective fighting force.” Historian William Thomas Allison, sometimes visiting professor at the Air War College, concludes in this valuable study of the role of the JAG Corp in Vietnam that “if military justice is indeed supposed to be a deterrent (to breaches of discipline), then it did indeed fail” in Vietnam (p.68). The story he tells is a sad and even maddening one.

Allison argues that the civilianization of military justice and the added missions of democracy and nation-building contributed greatly to “the disintegration of U.S. military forces in South Vietnam” (p.67). At the same time, the author praises the JAG lawyers, including his own father who served in the Corps, as “patient, creative, and dedicated” and “critical to averting a complete disintegration of military order” (p.29).

The book begins with a brief history of the Judge Advocate General’s Corps (JAG), which began in a sense when General Washington in 1775 asked Congress to appoint a lawyer to serve with him in the Continental Army. The next chapter outlines the experience of the JAG lawyers on the ground in Vietnam. This is followed by a chapter discussing jurisdictional issues confronted in the military justice system....In his concluding chapter (pp.168-186), he summarizes a series of both military and civilian studies that are very critical of how the Uniform Code of Military Justice of 1968 worked during the Vietnam conflict. Additional due process rights resulted in long investigations and in many cases where there was insufficient evidence to obtain a conviction. When convictions were obtained, it was not uncommon for appeals to result in reduced sentences. The studies conclude that such a system of punishment “lacks meaningful deterrent power” and was endangering the “ability of the forces to achieve their mission” (p.174). Further, the JAG lawyers “were not given the proper facilities, support, equipment, and hours all of which . . . hobbled not only the lawyers, but justice” (p.179).

Throughout the book, literally from the first page of text to the last, Allison reiterates the notion of nation-building “to instill democratic ideals and capitalistic values, including respect for the rule of law” (p.ix). In that regard, he addresses some very sensitive and important aspects of the Vietnam conflict and perhaps modern warfare generally. He acknowledges “the so-called mere gook rule,” under which serious crimes against Vietnamese “normally” resulted in acquittals (p.86). He points out that race was a major factor in behavioral and disciplinary matters. “Blacks made up 58 percent of the stockade population in southeast Asia, even though they only represented 9 percent of the Army in Vietnam” (p.30). He cites a study of off-duty behavior “suggest(ing) that white soldiers simply transferred traditionally held racial prejudices to Vietnamese, whereas black soldiers tended to ‘sympathize’ with the plight of the Vietnamese as an oppressed and exploited people” (p.86). He presents a summary of another study of the disciplinary and casualty experience of “the infamous Project 100,000, the brainchild of Assistant Secretary of Labor Daniel P. Moynihan and Secretary of Defense Robert McNamara” (p.29). It involved both urban and rural recruits with extremely low induction exam scores. “The death rate among these troops was twice that of the overall rate for U.S. forces” (p.30). At the same time, these troops were court-martialed at a rate 2 to 3 times the overall military personnel rate (p.30).

In an earlier study, one not included in Allison’s bibliography, Peter Maguire argues that “strategic legalism” has been the US policy norm in times of war. Strategic legalism is “the use of laws or legal arguments to further larger policy objectives regardless of facts or laws” (Maguire 2002, at 9) He explains, “Once the public has been served by symbolic justice, post-trial, non-judicial legal devices like pardons, clemency, and parole are used to mitigate the original public sentence” (Maguire 2002, at 67). [*368]

There is a consistent pattern of this strategic legalism throughout Allison’s book.